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News that Chinese hackers obtained personal details of 4 million US federal employees dating to 1985, following on the heels of similar attacks on the customer records of private insurance companies and retirement funds as well as the internal email networks of the US State Department and White House, demonstrate that a guerrilla cyber-war is underway. Although it will not replace traditional warfare any time soon, this is the new face of war for several reasons.

First, it does not involve physical conflict using kinetic weapons, which removes direct bloodletting from the equation. Second, it can target critical infrastructure (power grids, water supplies) as well as the command, control, communications, computing and intelligence (C4I) capabilities of adversaries. Third, it can be masked so that perpetrators can claim a measure of plausible deniability or at least intellectual distance from the action. Fourth, it can be used for tactical and strategic purposes and the pursuit of short or long-term objectives.

Much like military drones, cyberwar is here to stay.

The war is not one sided: Russian hackers have penetrated Pentagon email networks and the 5 Eyes signals intelligence alliance has dedicated hacking cells working 24/7 on targets of opportunity. Many other nations also indulge in the practice as far as their technological capabilities allow them. To these can be added a host of non-state actors—Wikileaks, Anonymous, ISIS, among others—who have also developed the capability to engage in electronic espionage, sabotage, data capture and theft.

With the most recent revelations about the hacks on the US Office of Personnel Management (OPM) archival records (which include personal details of active and retired federal employees as well as identities of those who have had or hold security clearances, perhaps including myself given my prior employment by the Department of Defense) an evolution in cyber warfare is now evident.

Previously, most state-sanctioned cyber attacks were so-called “front door” attacks on government or corporate mainframes, servers and networks. The interest was in surreptitiously obtaining sensitive data or installing surveillance devices in order to engage in ongoing monitoring of targeted entities. “Back door” probes and attacks were the province of non-state actors, especially criminal organisations, seeking to obtain private information of individuals and groups for fraudulent use. However, the recent attacks have been of the “back door” variety yet purportedly state sanctioned, and the Snowden leaks have revealed that 5 Eyes targets the personal communications of government officials, diplomats, military officials and corporate managers as a matter of course.

The move to state-sponsored “back door” hacks is ominous. Accessing data about current and retired government employees can be used to blackmail those suffering personal liabilities (debt, infidelity) in order to obtain sensitive information about government processes, procedures, protocols and policy. It can target active and former intelligence and military officials and others with access to classified information. It can target former public officials that have moved to the private sector, particularly in fields of strategic or commercial importance. Likewise, obtaining sensitive personal data of employees working in private firms opens the door to similar exploitation for illicit commercial gain.

Advances in consumer telecommunications have made cyber hacking easier. Smart phones and their applications are considered to be the most vulnerable to hacking. Because many people store an enormous amount of personal data on these devices, and because they often mix work and personal business on them, they represent an enticing entry point when targeted. Yet even knowing this millions of consumers continue to pack their lives into electronic devices, treating them more as secure bank vaults rather than as windows on their deepest secrets. Not surprisingly, both state and non-state actors have embarked on concerted efforts to penetrate mobile networks and hand-held devices. Encryption, while a useful defense against less capable hackers, only slows down but does not stop the probes of technologically sophisticated hackers such as those in the employ of a number of states.

The bottom line is this: the smaller the telecommunications market, the easier it is for cyber hackers to successfully place backdoor “bugs” into the network and targets within it, especially if government and corporate resources are directed towards defending against “front door” attacks. On the bright side, it is easier to defend against attacks in a smaller market if governments, firms, service providers and consumers work to provide a common defense against both “front door” and “back door” hacking.

The implications for New Zealand are significant.

In this new battleground physical distance cannot insulate New Zealand from foreign attack because cyber-war knows no territorial boundaries. New Zealand provides an inviting target because not only is an integral and active member of Western espionage networks, it also has proprietary technologies and intellectual property in strategic sectors of its trade-dependent economy (including niche defense-related firms) that are of interest to others. Because New Zealand’s corporate, academic and public service elites are relatively small and the overlap between them quite extensive, hacks on their personal data are a valuable tool of those who wish to use them for untoward purposes.

New Zealand public agencies and private firms have been relatively slow to react to the threat of cyber warfare. The data they hold on their employees, managers, policy elites and general population is an inviting “back door” for determined hackers seeking to exploit vulnerabilities in New Zealand’s cyber networks. Since many Kiwis are lax about separating their work and private electronic correspondence and records, the potential to access sensitive personal information is high.

New Zealand has been the subject of numerous “front door” cyber attacks and probes on public and private agencies, including an attack by Chinese-based hackers on the NIWA supercomputer carried out in concert with a similar attack by the same source on the supercomputer run by the US National Oceanographic and Atmospheric Administration (NIWA’s US counterpart). New Zealanders have been the targets of numerous “back door” intrusions such as phishing and other scams perpetrated by fraudsters and conmen. Yet successive governments have been slow to recognize the new threat advancing towards it in the cyber-sphere, only recently creating dedicated cyber security cells within the intelligence community and just last year amending the GCSB Act to address vulnerabilities in domestic internet security. But it still may not be enough.

Until New Zealand resolves the problem of institutional lag (that is, the time gap between the emergence of a technologically-driven threat and an institutional response on the part of those agencies responsible for defending against it), there is reason to be concerned for the security of private data stored in it. After all, in the age of cyberwar there is no such thing as a benign strategic environment.

Jane Kelsey’s latest book on trade, an edited collection titled No Ordinary Deal, was launched last night in Auckland. Other launches will follow in Hamilton, Wellington and Christchurch this week before the road show heads to Australia. As a contributor to the book I attended the launch and enjoyed the speech given by another contributor, Lori Wallach, a trade specialist at the US research institute Public Citizen (founded by Ralph Nader in 1971). Lori, who wrote the chapter on the US domestic agenda and approach to the so-called Trans-Pacific Partnership (TPP) negotiations, noted that the model for the TPP is not the General Agreement on Tarriffs and Trade (GATT) but instead the North American Free Trade Agreement (NAFTA), which essentially is an investor’s guarantee agreement rather than one about free trade per se.

In her chapter and her speech, Lori noted that among many other downsides to the TPP, it would exempt foreign investors from domestic regulations in NZ, and should the investor be made to comply with those regulations by court order, the costs of compliance would be borne by the NZ taxpayers in the form of mandatory compensation. She went on to note how local pharmaceutical regulations and control boards would be circumvented in favour of US drug company standards, and explicated the dumping and market monopolisation efforts of US agri-businesses under this type of trade regime. As a sidebar she noted how NZ dairy exports would not appreciably increase to the US under the agreement, as well as the fact that the recent midterm elections have ridden on a backlash against trade because of presumed US job losses tied to it, which means that the possibility of the US ratifying the TPP in the next two years under the new congressional leadership (even if negotiations are concluded, which itself is unlikely) are improbable at best. Her basic premise was that she would not object to the TPP if it were about free trading of goods and services as per the Ricardian ideal. What she objects to is the use of free market rhetoric to cloak cross-border commercial arrangements that are less than free or fair and which contain pernicious costs for smaller national partners and wage labour-dependent consumers in general.

The bottom line is that the TPP is fraught and the public need to be aware of the very large downside to it. It is not a genuine “free trade” agreement in the proper sense of the term. Instead, it is a US-centric investor’s agreement skewed in favour of large (mostly foreign) corporate interests rather than consumers and local producers. Among other topics, chapters (there are 19 in all) explore the impact of the TPP on indigenous rights, climate change, intellectual property, cultural exchange and, in my contribution, security. They are well worth reading, and often eye-opening.

The book is designed to promote informed debate on the matter by offering a critical counter-point to the received wisdom of the policy elites who attempt to sell it as as “win-win” universal good for all involved. As I have noted previously when writing about asymmetric trade, this is a far cry from the truth and carries with it not only the potential for a loss of economic freedom and sovereign control of strategic assets, but also the very real danger of increasing both physical and emotional insecurity in the smaller partners involved in such agreements. Since insecurity breeds fear (be it fear of job loss, fear of environmental harm, fear of forced dislocation from one’s land or cultural roots, to say nothing of fear of physical harm by direct or indirect means), and freedom from fear is considered to be an inalienable human right, the downside of the TPP needs to contrasted againt the supposed upsides championed by those who stand the most to benefit from the deal, and who constitute an elite and often unaccountable minority among the constituencies involved.

More publisher information on the book and the launches can be found at www.bwb.co.nz. An information sheet on the book is here:

No Ordinary DealUnmasking the Trans-Pacific Partnership Free Trade AgreementJane Kelsey
The Trans-Pacific Partnership is no ordinary free trade deal. Billed as an agreement fit for the twenty-first century, no one is sure what that means. For its champions in New Zealand a free trade agreement with the US is a magic bullet – opening closed doors for Fonterra into the US dairy market. President Obama sells it as the key to jobs and economic recovery, while protecting home markets. Australia hails it as a foundation stone for an APEC-wide free trade agreement.

None of these arguments stacks up. All nine participant countries except Vietnam are heavily liberalised, deregulated and privatised.* They already have many free trade deals between them. Who really believes that US dairy markets will be thrown open to New Zealand, or that China, India and Japan will sign onto a treaty they had no role in designing?

No Ordinary Deal
Experts from Australia, New Zealand, the US and Chile examine the geopolitical and security context of the negotiations and set out some of the costs for New Zealand and Australia of making trade-offs to the US simply to achieve a deal. ‘Trade’ agreement is a misnomer. The TPPA is not primarily about imports and exports. Its obligations will intrude into core areas of government policy and Parliamentary responsibilities. If the US lobby has its way, the rules will restrict how drug-buying agencies Pharmac (in New Zealand) and the Pharmaceutical Benefits Scheme (in Australia) can operate, and the kind of food standards and intellectual property laws we can have. Foreign investors will be able to sue the government for measures that erode their investment. The TPPA will govern how we regulate the finance industry or other services, along with our capacity to create jobs at home.

Above all, No Ordinary Deal unmasks the fallacies of the TPPA and exposes the contradictions of locking our countries even deeper into a neoliberal model of global free markets – when even political leaders admit that this has failed.

From time to time I read bloggers who complain that there work is stolen by MSM “repeaters” and repackaged under the repeaters’ by-line or in a story under their name. This form of plagarism is hard to prove conclusively because unless the repeater uses phrases word for word, s/he can claim that fortuitous intellectual coincidence rather than malice was involved.

Then I read Kerre Woodham’s column in today’s HoS. The tone is similar to the thrust of my post earlier in the week about the rise and fall of Paul Henry. That’s OK, as a number of people have taken the view that TVNZ management is as much if not more responsible than Mr. Henry for the debacle that his “insensitive remarks” has turned into.

But what are the chances that she and I would both use the phrase “bullet proof” in paragraphs specifically referring to the moment at the Qantas Media Awards when Henry decided he was invulnerable? Since her version appears five days after mine did, is it a wonderful coincidence and example of great minds thinking alike or an example of the type of repeating that other bloggers have complained about? In other words, is this Kerre’s “Noelle moment” or am I reading too much into it and being too possessive of a widely used argument and phraseology?. Readers can compare both essays and decide for themselves.

Either way, I guess I should be flattered–except that she gets paid to write things that I dole up for free.

Just before the end of the university term last year, Peter McCaffrey and ACT On Campus gave the Victoria University of Wellington Student Association an object lesson in how democracy works. They successfully passed a resolution that VUWSA make a select committee submission in support of Roger Douglas’ Education (Freedom of Association) Amendment Bill (making student association voluntary) despite various machinations employed by the VUWSA members and officeholders there. These events were well documented in text by Jenna Raeburn and in video with a ridiculouslytriumphalsoundtrack (irony noted by felix).

The fundamental problem of non-democratic (and poor-quality democratic) political systems is that they shelter those in power from the consequences of their actions. Authoritarianism (and authoritarian communism in particular) is deleterious not so much due to the economic failings of the system (such as the economic calculation problem) as due to the fact that in such systems there exists no mechanism to force, require or even encourage the leadership to act in its peoples’ interest. I’ve written a lot about the power transfer problem of orthodox Marxist pragma, and this is an aspect of it. When the leadership is invested with the monopoly power and authority to suppress a counter-revolution, how do you ever get them to relinquish it?

The effect of impunity is similarly evident in other fields; particularly in commerce, where the customary opposition of the terms “freedom” and “regulation” are little more than straw soldiers in a propaganda battle. Peter Drahos and John Braithwaite have written at length about the extent to which so-called free trade mechanisms such as TRIPS are instruments of international coercion more than they are of international trade, and how almost the entire intellectual property system of the modern world has been so thoroughly captured by existing rightsholders that it now functions as a form of privatised regulation by asserting near-impassable barriers to entry into the information marketplace. This suppresses competition, promotes the establishment and maintenance of cartels between existing participants, and all this breeds impunity, where participants have no (or few) reasons to develop their products and services to suit their users’ needs, and so they develop them to suit their own needs. The results are everywhere; for instance, in the fact that people are compelled to purchase Microsoft software with most new computers although they might hate and despise it, or simply not need it; or in the fact that those same users, having reluctantly purchased Windows since there are no easily-accessible alternatives (those having been shut out of the market years ago by patent thickets, bundling, cross-licensing, and so on) are then locked into using proprietary media formats, players, content distribution and communication systems with (in some cases well-known) surveillance functions and which are designed to restrict a users’ rights to their own hardware, content and communication, so that the system — and users’ participation in it — works in the provider’s interest, rather than the interests of its users.

That example is just one with which I’m familiar. Much more socially and economically important examples exist; particularly around medical development and crop research. But the point is that this whole system, billed as being about “freedom”, does not mean freedom for users so much as rightholders’ freedom from the need to cater to their users without fear of someone else eating their lunch.

Returning to student body politics. When a student union compels fees from its students, and when students who disagree with the union’s agenda are unable to withdraw their support, what incentive is there for the union to represent the interests of the student body? The political consequence of that system is a student body politic so complacent due to impunity in charge of millions of dollars a year in revenue that it literally cannot organise a SRC vote to save itself.

I am no great supporter of VSM; I view the threadbare rhetoric of “freedom” employed by Douglas, McCaffrey and so on with a jaundiced eye. I don’t believe people should simply be able to “opt out” of their society if they don’t like it, and I accept that the loss of revenue which will result from the (almost certain) passage of Douglas’ bill will place much of the genuinely good work student unions do in jeopardy. But the integrity of political systems is more important than discrete policy outcomes, and to be perfectly frank VUWSA, for its rank incompetence and duplicity in the face of legitimate challenge, deserves to be humiliated in this way.

I hope that the lesson about how democracy works will be well understood — that is: unless people make it work, it doesn’t. CSM as currently implemented promotes apathy and idiocy in student body politics, to a greater extent than it would exist in any case. That is bad for student body politics, and it’s bad for students. It depresses the quality of candidates and policy, and reduces the system to a comic farce which many students are justifiably ashamed of (if they care about it at all). Much better, for me, would be the the genuine politicisation of student politics, with groups organising and campaigning on their positions, winning a mandate and executing it, as in national and local body politics. If ACT on Campus want to campaign on “letting you keep more of your money”, let them do so, and good luck to them. (Of course, they have been, and it hasn’t been working out for them, so the parent party has resorted to regulation in the name of freedom. Plus ça change.)

So in my view the current threats to compulsory student unionism is largely the fault of the student unionists and their sense of entitlement to membership dues without the need to prove the value of their work to those who pay for it. The Douglas bill, while it will likely prove deleterious to the good work student unions do, may have a silver lining in that it will enforce greater discipline and competence upon student politicians, and require them to prove to their constituents that the work they do is actually valuable in order to win a mandate. If the work they do is genuinely valuable, as they say it is, such a mandate should be winnable. May they go forth and win it.

L

Postscript: Go and submit!
Select committee submissions on the bill close on 31 March 2010. Whatever your views, make them known. As I’ve said, I think it’s likely to pass (bloc support from ACT, National and UF), but that shouldn’t prevent you from making your views known. Incidentally, I approve of the relatively impartial editorial line taken by Salient, the VUWSA magazine. Especially given that this august [sic] organ depends on CSM for much of its funding, this is a bold and principled decision. Well done Sarah Robson.

I was not going to post on the Witi Ihimaera plagarism scandal, having commented under my own name on another blog that covered the matter. But as I compare my summary dismissal for writing a rude email to an unqualified and underperforming student with the lack of even a cursory reprimand for his theft of intellectual property, and then find out that apparently it is not the first time that Mr. Ihimaera has appropriated someone else’s work as his own, I find myself wondering if indeed there is a double standard at play when it comes to our respective treatment by my former employer. Let me explain why, but first point to the one consistency in the handling of both cases.

The University has, as part of its collective contract with the union representing academic staff, a series of procedures and regulations that have to be followed before an academic staff member can be dismissed for serious misconduct. This includes receiving a formal complaint detailing the misconduct, attempting to mediate the matter using the offices of the Ombudsman, handling the matter within the department, issuing two formal written warnings before dismissal is sought…the requirements are pretty detailed and in fact were made even more so after my dismissal precisely because of the controversy surrounding it. Perhaps Mr. Ihimaera is not a member of the union so other procedures were followed, but that usually mitigates against favorable resolution for the employee.

In my case none of the internal procedures were honoured other than as a facade. No formal written complaint was ever made against me, but without getting my side of the story the Ombuds(person) immediately brought the issue to the attention of my department HOD, who without saying a word to me passed it on to the Dean, who after consulting with the student as to what should be done held a series of brief meetings with me and a union rep in which he shrugged off my apologies and assurances, ignored the fact I had no prior formal warnings, and sent me packing. In fact, he and his HR advisors attempted to use a couple of unrelated events from the past (an argument with a former HOD about managerial practices and an email disagreement with a colleague about a grad student who failed to attend a class) to argue that prior warnings had been given. Those were later found to be irrelevant by the ERA.

In Mr. Ihimaera’s case it appears that, upon hearing that news of the plagarism was about to go public, the University rapidly pushed through an “investigation” of the matter apparently involving his HOD, the new Dean of Arts (who was not the Dean the fired me) and Mr. Ihimaera. No disciplinary board with colleagues outside of the HoD and Dean was apparently convened. Mr. Itimaera gave apologies and assurances, and the case was closed.

What is consistent in both cases is that the lengthy rules and procedures for handling discipline cases involving academics were circumvented, in his case favourably to him and in my case not. This galls me not because I think that Mr. Ihimaera should be fired–I do not, and think that both of us should have received a final written reprimand about our respective transgressions–but because the University argued that I was fired because of the damage I did to its reputation. This line of argument continued after the dismissal was found to be unjustified, then into the settlement agreement by which formal reinstatement meant no actual reinstatement. But what about my reputation? Not only did the leaked email wind up on the front page of the national newspaper and then went global, but the University did nothing to prevent its release or demand its withdrawal when a student newspaper under its authority first published it (even though leaking the email was a violation of the email policy under which I was ostensibly fired). Moreover, the University knew well what the impact of the dismissal would be. As the Dean who fired me said to the ERA, “in a reputation-based business like academia, summary dismissal essentially means the end of a career.” In my case that seems to be proving true, and perhaps it was that knowledge that made for lighter treatment for Mr. Ihimaera–but I suspect not, simply because his association with academia was one of mutual convenience rather than professional necessity.

My major question is, if what I did was so injurious to the University reputation, what about Mr. Ihimaera’s plagarism? Plagarism is the single worst thing that an academic can do. Working in a genre such as historical fiction does not excuse the lifting of other’s words. Plus, being housed within an academic institution means adhering to its requirements on original work, so he was, in fact, more duty bound than independent writers in that regard. Students get failed and often expelled for plagarism. Academic staff get demoted or fired for plagarism. And Mr Ihimaera did not even merit a reprimand? Now, it seems that the case gets worse, as others have come forth to claim that Mr. Ihimaera has plagarised in his previous work. If so, and if the University knew about those previous incidents, then its absolution of the latest episode is even more alarming.

The University and Mr. Ihimaera say that his plagarism was “inadvertent” and thus excusable. Even if that were true–and it stretches credulity to think that a famous author would not know the difference between his own words and sentence structure and those of others– standard guidelines on plagarism, including those specifically used and distributed by the University to students and staff, state that inadvertent or unknowing plagarism is no excuse for it. It is the author’s responsibility to ensure his/her work is original and properly cited, and the crosses all academic fields and intellectual genres.

Some have claimed that because Mr. Ihimaera is Maori, famous and gay, he got off lightly. I initially thought that was ludicrous and that there were other mitigating circumstances at play. But the more I learn about the case and think about the differences in our treatment, the more I wonder as to why those differences. Certainly universal institutional standards need to be upheld over and above the specific identity and interests of any individual. That is what the University claimed in my case. Yet, was what I did worse than plagarism? Did my email to an individual student cause more damage to the University than the discovery by a book reviewer in a national magazine of the as of then unattributed passages in Mr. Ihimaera’s latest book? How can he not even receive a reprimand, and how can the University claim that in both cases its standard rules and procedures were followed to the letter?

The real shame is that it is not my actions or Mr. Ihimaera’s that have tainted the reputation of the University. Instead, it is playing loose with the rules and attempts to “spin” both stories in a way that gives the illusion of procedures being properly followed that sullies the brand. That has a negative impact not only on the managerial cadre that are the perpetrators of the double standard but also the staff, alumni, current and prospective students who share association with the University name. Yet, instead of being ashamed and contrite, University managers continue to obfuscate and bluster, refusing to reveal how their “investigation” of the Ihimaera case was conducted citing privacy concerns (concerns they were not so concerned about when my email went public). It appears that management are blissfully unaware that the ship is sinking beneath them or else are confident that no matter what they do, they will not be held to account by anyone other than themselves. Since the taxpayers ultimately pay the salaries of all involved, that should be a matter of public interest.

This morning’s Insight documentary on NatRad is an example of what happens when journalists who know almost nothing about a given topic are tasked with putting together an in-depth, large-scale piece of investigative journalism on that topic. is based on the misleading assertion that copyright grants its owner an inherent right to an income.

Kim Griggs’ journalistic technique is fine – she’s talked to the major stakeholders, given both sides of the story and generally done very well at covering the issues. But she’s labouring under a delusion about what copyright grants. Specifically, she says:

Put simply, copyright is a bundle of rights which exist once an idea is given concrete form. That form can be a song, a film, a book, a cartoon, a map, or even an email, and the copyright owner has the right to decide how it’s used and to get paid for it.

My emphasis. But there is no copyright law anywhere which grants creators a right to get paid – all they have is the right to control the exploitation of their work, and if they can turn that into payment, then good on them. In the documentary John Key also makes this error, conflating “compensation and recognition” into the right to get paid.

It’s this false idea – that copyright owners have an inherent right to be paid regardless of how broken their business model might be – which prevents the development of better business models which mean they don’t need to treat their customers like the enemy in order to make money. Even the copyright lobby accepts this; they’re just so far behind the curve that their old models have failed before their new models are even off the drawing board. Of course, if they want to keep applying the stick, rather than employing the carrot, that’s their right.

The content owners have pulled a snowjob on Kim Griggs, which It is unfortunate, because there’s already too much uncertainty and misinformation on this matter, without more confusion being added by people who should be clarifying the issues.

Edit: Kim Griggs has emailed me to outline her extensive experience and expertise in the copyright industry in NZ, and Pippa makes many of the same points in a comment. On that basis I have apologised to Kim for the statement above about her expertise, and for suggestion she was fooled by the copyright lobby.

Nevertheless, my broader criticism stands: the statement I highlighted is wrong in fact and is unhelpful to the cause of reasoned debate because it blurs issues around economic rights, moral rights, contract law and industry practice into a blank statement that copyright == money.

Swedish company Global Gaming Factory X claims to have bought The Pirate Bay, in a press release declaring the acquisition. At the same time, they purchased Peerialism, which has developed “peerialistic” content-sharing models; new models which keep content-owners as happy as consumers. Or so they reckon. The purpose of the acquisition appears to be a move away from a content distribution model of questionable legality and toward a “third way” model of sorts.

We would like to introduce models which entail that content providers and copyright owners get paid for content that is downloaded via the site, ” said Hans Pandeya, CEO GGF. The Pirate Bay is a site that is among the top 100 most visited Internet sites in the world. However, in order to live on, The Pirate Bay requires a new business model, which satisfies the requirements and needs of all parties, content providers, broadband operators, end users, and the judiciary. Content creators and providers need to control their content and get paid for it. File sharers ‘need faster downloads and better quality, ” continues Hans Pandeya.

I don’t know how credible this all is; there’s no indication on the site that anything has changed. But if the news is legit, it is a major blow to the free content movement and the agenda which opposes rampant corporate control of information (about which I have written before). It could show that the fiercest ideological outlaws, people who have laughed in the face of legal and financial threats for years, are motivated by money after all. It also shows, perhaps, that losing a major lawsuit isn’t always a bad thing: it’s hard to see TPB, which has virtually no staff, assets or anything other than brand recognition being sold for SEK60m (NZ$12m) before the lawsuit and its Streisand Effect.

Edit: It’s now official, though they use the word “might” in a way the above-linked press release doesn’t.

Despite the price tag, that’s apparently not the point:

TPB is being sold for a great bit underneath it’s value if the money would be the interesting part. It’s not. The interesting thing is that the right people with the right attitude and possibilities keep running the site.

They also roll out a good lick of market-libertarian rhetoric in their favour:

On the internets, stuff dies if it doesn’t evolve. We don’t want that to happen. We’ve been working on this project for many years. It’s time to invite more people into the project, in a way that is secure and safe for everybody. We need that, or the site will die. And letting TPB die is the last thing that is allowed to happen! If the new owners will screw around with the site, nobody will keep using it. That’s the biggest insurance one can have that the site will be run in the way that we all want to. And – you can now not only share files but shares with people. Everybody can indeed be the owner of The Pirate Bay now. That’s awesome and will take the heat of us.

Although I never got around to doing the follow-up post on the political-symbolic aspects of the Pirate Bay case (for which you can all blame my baby daughter), one of the consequences of the guilty verdict I considered has come to pass: the Swedish Piratpartiet has won a seat in the European parliament, gaining more than 7% of the vote in Sweden.

How much change they can make in that bureaucratic behemoth is another matter but their election as a Streisand effect-like result of the Pirate Bay verdict which gave them an immense boost in public profile, shows that this is a political issue with teeth.

BackgroundThe Pirate Bay is a BitTorrent tracker – one of the world’s largest, most popular and best-known. Four of its co-founders were yesterday convicted of “assisting in making copyright content available”, sentenced to 12 months’ jail each and required to pay 30 million Kronor (about NZ$6.3m) between them. The offence was not the same as actually distributing the copyright material – the torrent files hosted on TPB are not themselves subject to copyright, but they enable a user to easily access material which is. For a quick backgrounder, see The Guardian’s FAQ, and for exhaustive coverage, see Threat Level’s archive.

I’m very interested indeed in the roles which intellectual property mechanisms play in the world. This verdict has complex and possibly profound political, social, technological and economic implications. I won’t argue its legal merits, but, despite their claims, I don’t think this case or verdict is in the content owners’ best long-term interests, because it perpetuates a business model which has been proven unfit for its purpose.

Social and political implications
The social and political implications of this verdict seem likely to result in a sort of Streisand effect where by winning a battle, copyright owners may galvanise opposition to their business model and enforcement practices. This verdict was never going to be the end; as defendant Peter Sunde said it was to decide nothing other than which side would file an appeal. [Video in two parts here and here. The first five minutes or so is in Swedish; the rest is in English.] So as much bad-will as there is against the content owners, there’s plenty more time for it to build.

Online media consumption (sanctioned and otherwise) is largely the domain of the two generations born since the baby boom – quite distinct from those in control of the legal, business and political systems which produce that media and constrain its usage, who are middle-aged and older. There exists a significant disconnect between these generations, and the Pirate Bay verdict seems like it could crystallise that disconnect into an outright generational divide along political and philosophical lines. Those in their thirties and forties have been heavily involved in shaping the internet into the phenomenon it is, nurturing fledgling technologies (including filesharing) to meet their own needs and building cultures and identities around different types of participation. It’s theirs; they created it. The generation now in their teens and twenties have known nothing else, and they are the driving force behind its constant recreation, and are if anything even more strongly engaged. The content industry is currently trying the ‘stick’ approach – trying to dictate terms to two generations who’re used to having things their way and are more than capable of making it so. As those generations displace their pre-internet elders, and as the developing world begins to participate more strongly in traditionally-Western information communities, content owners will find themselves less able to dictate terms, not more so. Those in charge of intellectual property realise this and have been busy over the past few decades establishing and extending copyright, patent and trademark systems, conditional trade treaties, anti-circumvention legislation, privacy infringements under the guise of cyber-terrorism prevention, and other such measures under the auspices of TRIPS, the DMCA, the PATRIOT Act, IPRED and plenty of lawsuits, including this one – all in order to retain their existing, inferior business models rather than be forced to compete on the open market of ideas in order to develop better ones.

There are political implications for all of this, as well – the Pirate Party of Sweden, formed to reform copyright law, abolish the patent system and strengthen privacy rights, claims to have gained 3,000 new members in the seven hours following the verdict, giving it a larger membership than four out of seven current parties in the Swedish parliament (and if their online membership graph can be believed, it looks like they were up above 5,000 new members within 12 hours). Candidate Christian Engström said:

“The ruling is our ticket to the European Parliament,” concluded Engström, who expects a populist backlash against the ruling to help his party’s chances of gaining a seat in the EU’s primary legislative body. [source]

Now, single-issue parties have a particularly hard row to hoe (even TPB’s Peter Sunde doesn’t vote for the Pirate Party), and in terms of realpolitik few countries can afford to deviate from the intellectual property line established by TRIPS. Nevertheless there are big philosophical issues at stake here. Politicians ignore those two generations at their peril.

Technological and economic implications
Technological and economic implications are linked because technology dictates the means by which content may be distributed, and without distribution there is no revenue. The Streisand effect mentioned above will likely manifest initially in the market for media as a short-term (and possibly short-lived) , but its long-term implications are much broader. Many of the content owners’ arguments against groups like TPB rest on the flawed premise that demand for content is static and copyright infringement is zero-sum (that is: every copy downloaded represents one less copy bought). The fall in revenue, they claim, is because of copyright infringement, so reducing copyright infringement will necessarily cause revenue to pick up again. There are two problems here: first, the genie is already out of the bottle, and two generations are now accustomed to consuming media on their own terms. They will not be forced to consume media in only the ways which content owners want them to, and whoever applies the stick in an attempt to make them do so will suffer as a consequence, because the content industries depend upon their consumers for survival, not the other way around. Second, and this is critical: by engaging in an aggressive game of whack-a-mole to safeguard a broken business model, the content industry has hastened the destruction of that business model by ensuring that only the fittest filesharing systems survive. Cory Doctorow makes both points better than I:

If The Pirate Bay shuts down, it’s certain that something else will spring up in its wake, of course — just as The Pirate Bay appeared in the wake of the closure of other, more “moderate” services.
With each successive takedown, the entertainment industry forces these services into architectures that are harder to police and harder to shut down. And with each takedown, the industry creates martyrs who inspire their users into an ideological opposition to the entertainment industry, turning them into people who actively dislike these companies and wish them ill (as opposed to opportunists who supplemented their legal acquisition of copyrighted materials with infringing downloads).
It’s a race to turn a relatively benign symbiote (the original Napster, which offered to pay for its downloads if it could get a license) into vicious, antibiotic resistant bacteria that’s dedicated to their destruction.

Content owners, by enforcing the discipline required to survive in a hostile environment, are granting clandestine distribution systems an enormous advantage: those systems evolve and improve while their own system stagnates. There are a few exceptions: Radiohead and Trent Reznor are at the forefront.

Of much more grave seriousness, however, is the chilling effect this verdict could have on the internet – search engines, ISPs and end users. Roger Wallis, Emeritus Professor of Media at Sweden’s Royal Institute of Technology (and an expert witness for the defence) warned:

This will cause a flood of court cases. Against all the ISPs. Because if these guys assisted in copyright infringements, then the ISPs also did. This will have huge consequences. The entire development of broadband may be stalled.

His point is that TPB’s technology meant their servers never hosted copyright files – those were hosted on its users’ home computers, and TPB simply provides a search engine to find content and a service which tells one user’s computer where to find files hosted on another user’s computer. If that makes one criminally liable, then those who are doing the actual distribution (te end users) and a whole lot of other people and organisations whose computers provide similar assistance including search engines and ISPs, are also criminally liable – and could even be more culpable than TPB were, since those computers actually host and distribute the copyright files themselves. Due to the highly robust, distributed, fault-tolerant nature of modern content-distribution systems made fit by nearly a decade’s worth of fine-tuning, there is simply no way to beat filesharing without targeting end-users and ISPs on a case-by-case basis. Any reluctance to roll out or use broadband internet services will have catastrophic flow-on economic effects, and given that media consumption is a major driver of broadband, content owners are in a catch-22 situation: either they aggressively prosecute ISPs and end-users or they fail to beat filesharing. In the former case, they get to keep their business model, at the cost of making criminals of their consumer base and ensuring that yet more complex, robust and powerful distribution mechanisms are developed – and possibly at the cost of the internet as we know it. In the latter case, they have to develop systems which are fit enough to survive on their own. The longer they delay, the harder it will be.

An upcoming post will look at the battle for hearts and minds which will fundamentally determine the winner in this contest.

The point of the action was not about colouring your site black – it was about withholding content. To black your site out and to obliterate all the content on it, demonstrating what might happen in a s92-safe world. Many did, many didn’t.

So, according to my totally unscientific rating scheme, if you didn’t remove the content the best you got is a bare pass. Other than that, it was points on or off for clarity of message, design, and general commitment to the cause. Don’t take this as me being uncharitable – I figure everyone benefits if actions like this are as well-produced as possible.

Public Address – clear, punchy, doesn’t get bogged down in detail, links through to information. A.

Kiwiblog – One post blacked out, ads off, comments off. Given that KB is one of the banner sponsors and organisers of this action, you’d think it was important enough to do properly. Bloody weak. But then some time around 0945, the site redirected to http://creativefreedom.org.nz/blackout-homepage.html, thankfully. B overall.

The Standard [shot] – Nuked the colour scheme and all content, but didn’t make it black! C+.

The Hand Mirror [shot] – Changed the colour scheme, but didn’t make it black. Page looks like it’s been haxx0red. Content still there too. D+.

Scoop [shot] – `404 Page Censored’. Mixed messages, but 404 is the http error meaning `file not found’, and this is what we’re looking at under s92. Requires people to engage (which they might not), but `page censored’ is a strong statement. A.

No Minister – Partisan hackery plus no blackout and all the content still there – only the animated gif. Minor points for leaving up a full explanatory message. Not quite worse than useless, but almost. D-.

Homepaddock [shot] – Customised blog post and theme, which gets the full point across well. Content remains, however. C.